Commonwealth v. Tejada

J-S63001-17
2018 PA Super 145

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

RICKY TEJADA

Appellant No. 24 WDA 2016

Appeal from the Order December 18, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002407-2015

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

RICKY TEJADA

Appellant No. 119 WDA 2016

Appeal from the Order January 11, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002407-2015

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

RICKY TEJADA

Appellant No. 170 WDA 2016
J-S63001-17

Appeal from the Order December 17, 2015
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002407-2015

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

RICKY TEJADA

Appellant No. 872 WDA 2016

Appeal from the Order March 9, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002407-2015

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA

v.

RICKY TEJADA

Appellant No. 892 WDA 2016

Appeal from the Order March 9, 2016
In the Court of Common Pleas of Erie County
Criminal Division at No(s): CP-25-CR-0002407-2015

BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.

OPINION BY BOWES, J.: FILED JUNE 1, 2018

Ricky Tejada appeals from the judgment of sentence of four to eight

years incarceration imposed following his convictions for two counts of

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aggravated harassment by a prisoner. Appellant elected to act as his own

counsel, but was removed from the courtroom due to his behavior during

voir dire. The trial court, which did not appoint standby counsel and rejected

Appellant’s request for same, conducted the entire trial without any

representation of Appellant’s interests. We reverse.

Implicated herein is the defendant’s constitutional rights to be present

for trial, have counsel, and represent himself if he so wishes. The United

States Supreme Court has not held that appointment of standby counsel is

required when a defendant elects to represent himself.1 It is, however, well-

settled that a defendant may forfeit his right to be present for his trial. In

this issue of first impression in Pennsylvania, we address an intersection of

those lines of case law: whether a pro se defendant forfeits his right to

representation when his behavior results in the loss of right to be present for

trial. For the reasons that follow, we conclude that a defendant cannot

forfeit his right of representation, and therefore vacate Appellant’s judgment

of sentence and remand for a new trial.

Appellate counsel previously filed a petition to withdraw from

representation and a brief pursuant to Anders v. California, 386 U.S. 738

(1967), and Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009), which
____________________________________________

1 See Wayne R. LaFave, et. al., 3 Crim. Proc. § 11.5(f) (4th ed. 2017)
(“Although appellate courts have suggested that appointment
of standby counsel is to be preferred, it is not constitutionally required.”).

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we denied. Commonwealth v. Tejada, 176 A.3d 355 (Pa.Super. 2017).

We directed counsel to file a merits brief on the question of whether the trial

court erred in proceeding with trial after ordering Appellant’s removal.

We previously set forth the factual and procedural history2 of this

matter in our decision denying the petition to withdraw, which we reproduce

herein:

Appellant elected to represent himself at trial. Appellant
appeared for a scheduled jury trial on January 11, 2016, and the
proceedings commenced with the trial court asking, “it's my
understanding you are representing yourself; is that correct?”
Appellant confirmed that he intended to act as his own attorney.
Following a waiver colloquy, the trial court concluded that
Appellant validly waived his right to counsel.

....

Appellant then claimed that he was incompetent to proceed and
demanded a competency hearing, which the trial court denied on
the basis that Appellant's behavior did not indicate any
incompetency. Following that discussion, the trial court informed
Appellant that jury selection would proceed “as soon as we get a
jury panel available.”

Following a recess the trial court asked, “[Appellant], I need to
know if you are going to stay for your trial?” Appellant claimed
that he was “not the defendant” and argued that the court “has
no jurisdiction to proceed.” Appellant does not appear to have
been otherwise disruptive of the proceedings, as reflected by the
fact that the trial court stated, “I'm going to allow you to remain,
but if you disrupt the proceeding, in any way, you will be
removed and the trial will go on without you.”

____________________________________________

2This appeal lists multiple dockets due to several premature pro se notices
of appeal, which were consolidated.

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The jury panel then entered the room. Appellant requested to
admit into evidence the voir dire sheets, claiming that the sheets
were “illegible and incomprehensible because of the writing.”
Significantly, Appellant followed that statement with the
following request:

The defense also makes it known for the record he
requires counsel. I told you numerous times I don't
understand. You're trying to push the trial on me. I
got a 6th Amendment right to counsel. It's not filled
out and I told you, I'm asking for my constitutional
6th amendment right since you're forcing the trial on
me improperly.

THE COURT: Mr. Tejada, you waived your right to
counsel.

MR. TEJADA: And I got a constitutional right to get it
reinstated.

THE COURT: Excuse me. Mr. Tejada, I'm speaking. I
didn't interrupt you and don't interrupt me. You
waived your right to counsel approximately one hour
ago before this [c]ourt. I went over the rights waiver
in detail with you. You answered the questions
appropriately and waived your right to counsel....

Appellant interjected, “The constitution doesn't put no restraints
on when I can reinstate that right. I'm timely reinstating it.”
Following more discussion, the trial court stated, “[Y]our
outbursts will not be tolerated, you will be removed from this
courtroom, you will be tried in absentia.” Finally, the trial court
stated that Appellant could communicate with the court so long
as he followed the rules, to which Appellant replied, “Then
appoint standby counsel to communicate with the [c]ourt.” The
trial court repeated that outbursts would not be tolerated. The
following exchange occurred:

MR. TEJADA: So are you saying I'm denied the right
to standby counsel? If not, appoint me counsel. Is
that what you're saying for the record?

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THE COURT: I'm saying that we are going to
begin voir dire.

MR. TEJADA: If you conduct voir dire, then I need
counsel.

THE COURT: You already waived your right to
counsel.

MR. TEJADA: And I'm petitioning to reinstate in
accordance with the Pennsylvania Rules of Criminal
Procedure 120.

The COURT: Well, it's too late at this point.

MR. TEJADA: So you're waiving my right to counsel
or standby counsel?

THE COURT: All right. Take Mr. Tejada out, please.

Id. at 357–58 (footnotes and citations omitted).

We stated that the issue appeared to be one of first impression in this

Commonwealth, and the parties’ substituted briefs likewise view it as such.

Appellant largely relies on precedents by our sister courts who have

addressed this issue. The Oregon Court of Appeals cogently summarized the

position that Appellant asks this Court to take:

[A] situation like that confronted by the trial court here raises
“complex constitutional issues,” because it implicates three
related but distinct Sixth Amendment rights: (1) the right to be
present at trial; (2) the right to self-representation; and (3) the
right to representation. Persuaded by the Ninth Circuit's analysis
in United States v. Mack, 362 F.3d 597 (9th Cir. 2004), we
held that a defendant may forfeit the first two of those rights by
misconduct, but does not forfeit the third: “although a defendant
who acts out at trial may forfeit the right to be present and the
right to self-representation in the proceeding, the defendant
does not also forfeit the right to any representation at trial.”

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Consequently, because a criminal defendant does not forfeit the
right to representation by misconduct (only the rights to self-
representation and to be present), “after a trial court has
removed a pro se defendant for his or her misconduct, the trial
court cannot proceed in the defendant's absence unless and until
the trial court has either secured the defendant's waiver of his or
her right to representation at trial or has taken some other
course of action that protects the defendant's right to
representation, which may include the appointment of counsel.”
Id. at 185, 341 P.3d 229.

State v. Lacey, 385 P.3d 1151, 1152–53 (Or.Ct.App. 2016), review

allowed, 393 P.3d 1176 (Or. 2017) (emphasis added). Accord People v.

Ramos, 210 Cal.Rptr.3d 242 (Cal.Ct.App. 2016) (holding that involuntary

removal of pro se defendant violates Sixth Amendment); People v. Cohn,

160 P.3d 336, 343 (Colo.App. 2007) (holding a pro se defendant’s conduct

did not result in loss of right to representation, as “the trial court could have

found defendant had waived his right to proceed pro se and appointed

counsel to represent defendant's interests during the time he was excluded

from the courtroom.”).

The Commonwealth does not take a position on whether we should

accept or reject the foregoing analysis. Its argument is reproduced in full:

The Appellant's persistent belligerence resulted in the trial
proceeding in his absence. The Appellant had sufficient
opportunity to amend his behavior and declined to do so. Under
the principles of Pa.R.Crim.P. 1117 and Commonwealth v.
Ford, 650 A.2d 433, 440 (Pa. 1994) the case proceeded in the
Appellant's absence, as was appropriate and within the sound
discretion of the trial judge. The Appellant's decisions and
behaviors, despite repeated warnings, constituted an implicit
waiver of his right to be present at trial. If the accused is abusive

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and disruptive to the proceedings it is not an abuse of discretion
for the trial judge to have the defendant removed from the
courtroom. Commonwealth v. Basemore, 582 A.2d 861, 867-
68 (Pa. 1990).

Even accounting for the analysis of the Ninth Circuit Court of
Appeals in United States v. Mack, 362 F.3d 597 (2004), it
cannot be supposed that a criminal defendant who has
adamantly rejected representation, spurned stand-by counsel
and then due to their own disruptive behavior waives his own
presence can then be forced, in his absence, to have counsel
imposed against his will. As unusual as these circumstances
may be, the answer cannot be to impose upon the defendant
representation they not only did not seek but specifically
rejected.

Commonwealth’s brief at 2-3. Beyond these statements, the

Commonwealth has not developed why this Court should not, as Appellant

urges, follow the lead of our sister courts and conclude that “Where a

criminal case is tried against a vacant defense table, the adversarial process

has broken down, and cannot ensure that the convictions rendered are fair

and reliable.” Lacey, supra at 1153. Instead, the Commonwealth insists

that relief is not warranted “[e]ven accounting for [that] analysis,” but

without addressing that analysis. The Commonwealth essentially asks this

Court to affirm Appellant’s judgment of sentence as a consequence of his

belligerence. For the reasons that follow, we are persuaded by the analysis

set forth in Lacey, which we find is in line with the pertinent United States

Supreme Court decisions and Pennsylvania pronouncements in related

contexts. We hold that Appellant’s Sixth Amendment right to counsel was

denied, and grant him a new trial.

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J-S63001-17

I

This appeal poses a pure question of law, to which we apply a de novo

standard of review. See Commonwealth v. Lucarelli, 971 A.2d 1173 (Pa.

2009) (applying de novo review to whether doctrine of forfeiture justified

denial of right to counsel). Appellant claims a total deprivation of the right

to counsel, which is a structural error mandating a new trial without any

inquiry into prejudice. See United States v. Cronic, 466 U.S. 648 (1984)

(complete denial of counsel is presumptively prejudicial); Commonwealth

v. Martin, 5 A.3d 177, 192 (Pa. 2010) (“[T]he Cronic presumption of

prejudice may also be appropriate upon a showing that some structural error

or defect so gravely affected the trial mechanism and framework that a

constitutional deprivation occurred.”).

As set forth supra, Appellant asks this Court to apply the legal

framework announced in Lacey. We previously reproduced the

Commonwealth’s argument in response, which we now examine in more

detail. The Commonwealth cites Commonwealth v. Ford, 650 A.2d 433

(Pa. 1994), which states that a defendant may waive his right to be present

for trial, and Commonwealth v. Basemore, 582 A.2d 861 (Pa. 1990),

which involved the removal of a defendant during trial due to his poor

behavior. Together, the Commonwealth asserts that the trial court did not

err by barring Appellant from the courtroom. Building upon this, the

Commonwealth next suggests that the failure to appoint any attorney to

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represent Appellant’s interests following removal was proper, by framing the

assignment of standby counsel as the equivalent of imposing counsel against

Appellant’s will.

As we shall explain, the issue of removal is distinct from the right of

representation by counsel, and the related right of self-representation. In

turn, we find that the Commonwealth’s assertion that appointment of

standby counsel would violate Appellant’s choice to represent himself fails to

recognize what interests the underlying right of self-representation is

designed to protect. We begin by setting forth the relevant rights in more

detail.

A

Right to be present at trial

A criminal defendant has both a rule-based right to be present for trial,

Pa.R.Crim.P. 602, as well as a constitutional right. The United States

Supreme Court has explained that this right stems from the Confrontation

Clause of the Sixth Amendment to the United States Constitution. “One of

the most basic of the rights guaranteed by the Confrontation Clause is the

accused's right to be present in the courtroom at every stage of his trial.”

Illinois v. Allen, 397 U.S. 337, 338 (1970). In Allen, the High Court

rejected the determination of the United States Court of Appeals for the

Seventh Circuit’s determination that a defendant can never be removed from

the courtroom. The Seventh Circuit had held that the Sixth Amendment

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right to be present is absolute, and that a trial court must deal with unruly

defendants by other means, including shackles and gags. The Supreme

Court disagreed.

[W]e explicitly hold today that a defendant can lose his right to
be present at trial if, after he has been warned by the judge that
he will be removed if he continues his disruptive behavior, he
nevertheless insists on conducting himself in a manner so
disorderly, disruptive, and disrespectful of the court that his trial
cannot be carried on with him in the courtroom. Once lost, the
right to be present can, of course, be reclaimed as soon as the
defendant is willing to conduct himself consistently with the
decorum and respect inherent in the concept of courts and
judicial proceedings.

Id. at 343 (footnote omitted).

The Commonwealth cites Basemore, which applied Allen, as relevant

to the trial court’s decision to continue proceedings following ejectment.

Basemore, supra at 868 (“[T]he court followed the guidelines set forth

in Allen, supra, by warning Appellant before removing him from the

courtroom and by giving Appellant the opportunity to return at any time

provided he agreed to conduct himself properly.”). The Commonwealth

states that under Basemore—and, by extension, the constitutional right

addressed in Allen—the trial court’s decision to proceed in Appellant’s

absence was proper.

Appellant’s behavior cannot be ignored, but, contrary to the

Commonwealth’s urging, we cannot assume that the considerations

justifying a limitation upon the right to be present for trial automatically

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extend to denying any representation of the defendant’s interests. The

Commonwealth’s analysis glosses over the fact that in Basemore and Allen

the defendants were represented by counsel and the trials largely proceeded

as they otherwise would have had the defendants remained in the

courtroom.

In contrast, Appellant’s removal herein, purportedly justifiable under

Allen, resulted in the elimination of the adversarial process as the

Commonwealth was permitted to proceed without any opposition. “The

Sixth Amendment provides that an accused shall enjoy the right ‘to have the

Assistance of Counsel for his defense.’ This right, fundamental to our

system of justice is meant to assure fairness in the adversary criminal

process.” United States v. Morrison, 449 U.S. 361, 364 (1981) (citing

Gideon v. Wainwright, 372 U.S. 335, 344 (1963)). The absence of an

adversary necessarily resulted in the loss of other critical procedures,

including cross-examination of the prosecution’s witnesses. Cf. Crawford v.

Washington, 541 U.S. 36, 61 (2004) (“To be sure, the [Confrontation]

Clause's ultimate goal is to ensure reliability of evidence, but it is a

procedural rather than a substantive guarantee. It commands, not that

evidence be reliable, but that reliability be assessed in a particular manner:

by testing in the crucible of cross-examination.”). Removing Appellant

meant that the Commonwealth encountered no opposition, raising grave

doubts as to the validity of the verdict.

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Indeed, Appellant does not complain that his removal was unjustified,

and he effectively concedes that the trial court’s decision to remove him was

within the court’s discretion.

In the present case, the Appellant was removed from the
courtroom after repeated warnings from the trial court to correct
his behavior. And while it would seem that the removal
from the courtroom by the trial court is supported on the
record, what is problematic is that the trial court permitted the
Commonwealth to proceed with no counsel present for the
Appellant as prior to the Appellant's removal, the trial court
permitted the Appellant to proceed pro se.

Appellant’s brief at 12 (emphasis added).

To be sure, the elimination of the adversarial process was a

consequence of the trial court’s decision to bar Appellant from the

courtroom. Nevertheless, the Commonwealth’s analysis does not account

for the fact that the singular act of removing Appellant from the courtroom

affected two separate rights: the right to be present, and the right to

counsel. Allen sanctions the elimination of Appellant’s right to be present as

the result of his poor behavior. The question, however, is whether loss of

the right to be present permitted the trial court to deprive him of his right to

counsel due solely to his pro se status.

B

Right to self-representation

Appellant, as an indigent, would have been represented by appointed

counsel but for his decision to represent himself. We thus now address the

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right to self-representation. In Commonwealth v. Starr, 664 A.2d 1326

(Pa. 1995), our Supreme Court noted that a defendant

has a long-recognized constitutional right to dispense with
counsel and to defend himself before the court. Faretta v.
California, 422 U.S. 806, 821, 95 S.Ct. 2525, 2534, 45 L.Ed.2d
562 (1975) (implicit in the structure of the Sixth Amendment is
the right of a criminally accused to conduct his own
defense); Commonwealth v. Szuchon, 506 Pa. 228, 250, 484
A.2d 1365, 1376–1377 (1984) (an accused has a right to
conduct his own defense pursuant to Article 1, Section 9 of the
Pennsylvania Constitution). In short, this highly
personal constitutional right operates to prevent a state from
bringing a person into its criminal courts and in those courts
force a lawyer upon him when he asserts his constitutional right
to conduct his own defense. Faretta, supra, at 807, 95 S.Ct. at
2527.

Id. at 1334–35 (footnotes omitted).

As Starr indicated, a defendant’s right to defend himself before a

tribunal is implicit in the Sixth Amendment, which is binding on the States

through the Fourteenth Amendment. Faretta determined that the right of

self-representation is a corollary to the right to counsel.

[The Sixth Amendment] speaks of the ‘assistance’ of counsel,
and an assistant, however expert, is still an assistant. The
language and spirit of the Sixth Amendment contemplate that
counsel, like the other defense tools guaranteed by the
Amendment, shall be an aid to a willing defendant—not an organ
of the State interposed between an unwilling defendant and his
right to defend himself personally. To thrust counsel upon the
accused, against his considered wish, thus violates the logic of
the Amendment. In such a case, counsel is not an assistant, but
a master; and the right to make a defense is stripped of the
personal character upon which the Amendment insists. It is true
that when a defendant chooses to have a lawyer manage and
present his case, law and tradition may allocate to the counsel
the power to make binding decisions of trial strategy in many

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areas. This allocation can only be justified, however, by the
defendant's consent, at the outset, to accept counsel as his
representative. An unwanted counsel ‘represents' the defendant
only through a tenuous and unacceptable legal fiction.

Faretta, supra at 820-21 (citations and footnote omitted).3 Additionally,

Faretta viewed the ability to reject a State appointed attorney as

implicating autonomy. “And whatever else may be said of those who wrote

the Bill of Rights, surely there can be no doubt that they understood the

inestimable worth of free choice.” Id. at 833-34 (footnote omitted).

Later cases held that the right to self-representation is not absolute.

McKaskle v. Wiggins, 465 U.S. 168 (1984), offers some parallels to the

present circumstances as the question therein was whether standby counsel

could act absent express consent by the defendant. We recently

summarized McKaskle as follows:

____________________________________________

3 In Indiana v. Edwards, 554 U.S. 164 (2008), the High Court explained
that Faretta

implied that right from: (1) a nearly universal conviction, made
manifest in state law, that forcing a lawyer upon an unwilling
defendant is contrary to his basic right to defend himself if he
truly wants to do so; (2) Sixth Amendment language granting
rights to the “accused”; (3) Sixth Amendment structure
indicating that the rights it sets forth, related to the fair
administration of American justice, are personal to the accused;
(4) the absence of historical examples of forced representation,
and (5) respect for the individual[.]

Id. at 170–71 (cleaned up).

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[T]he High Court considered whether Faretta permitted the
participation of standby counsel even without the express
consent of the defendant. Therein, Wiggins informed the court
he would proceed pro se and “objected even to the court's
insistence that counsel remain available for consultation.” Id. at
172, 104 S.Ct. 944. That request was denied and the trial judge
appointed two attorneys to act as standby counsel. Throughout
the trial, Wiggins occasionally consulted with standby counsel,
and the attorneys sometimes initiated private consultations. The
Court of Appeals held that Wiggins' Sixth Amendment rights
were “violated by the unsolicited participation of overzealous
standby counsel[.]” Id. at 173, 104 S.Ct. 944 (citation omitted).

The High Court reversed and held that Faretta's “logic ...
indicate[s] that no absolute bar on standby counsel's unsolicited
participation is appropriate or was intended.” Id. at 176, 104
S.Ct. 944. The Court explained:

In determining whether a defendant's Faretta rights
have been respected, the primary focus must be on
whether the defendant had a fair chance to present
his case in his own way. Faretta itself dealt with the
defendant's affirmative right to participate, not with
the limits on standby counsel's additional
involvement. The specific rights to make his voice
heard that Wiggins was plainly accorded, form the
core of a defendant's right of self-representation.

Id. at 177, 104 S.Ct. 944 (internal citation omitted).

Commonwealth v. Tighe, 2018 PA Super 86 (Pa.Super. 2018) (footnote

omitted). Appellant did not expressly consent to standby counsel, but

neither did he reject it.

C

Appointing standby counsel would not violate Faretta

We now address the Commonwealth’s claim that appointing counsel to

represent Appellant’s interests implicates the dignity rationale, i.e., its

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position that the trial court could not “impose upon the defendant

representation [Appellant] did not seek[.]” Commonwealth’s brief at 3.

That assertion sounds plausible in that appointment of standby counsel

would eliminate Appellant’s “actual control over the case he chooses to

present to the jury.” McKaskle, supra at 178. Moreover, participation by

standby counsel would have “destroy[ed] the jury's perception that the

defendant [was] representing himself” because standby counsel, not

Appellant, would present the defense. Thus, the right of self-representation

would not be honored if standby counsel represented Appellant’s interests.

However, narrowly focusing on the jury’s perception loses sight of the

forest for the trees. Faretta and McKaskle both involved defendants who

remained in the courtroom and could actually present a defense. McKaskle

states that “the primary focus must be on whether the defendant had a fair

chance to present his case in his own way.” Id. at 177. Herein, Appellant

had no chance to present a case due to his removal. Thus, the appointment

of standby counsel to represent Appellant’s interests, while “destroy[ing] the

jury’s perception” that Appellant was representing himself, was surely

preferable to having no defense at all. “[A]ny person haled into court . . .

cannot be assured a fair trial unless counsel is provided for him.” Gideon,

supra at 344.

In this respect, we note that the dissenting Justices in Faretta, who

would have held that there is no constitutional right to act as one’s own

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counsel, were concerned with the risk of injustice associated with trials

conducted by pro se defendants.

The Court seems to suggest that so long as the accused is willing
to pay the consequences of his folly, there is no reason for not
allowing a defendant the right to self-representation. That view
ignores the established principle that the interest of the State in
a criminal prosecution ‘is not that it shall win a case, but that
justice shall be done.’ Berger v. United States, 295 U.S. 78,
88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935). . . .

....

Nevertheless, the Court concludes that self-representation must
be allowed despite the obvious dangers of unjust convictions in
order to protect the individual defendant's right of free choice.
As I have already indicated, I cannot agree to such a drastic
curtailment of the interest of the State in seeing that justice is
done in a real and objective sense.

Faretta, supra at 849-51 (Blackmun, J., dissenting) (some citations

omitted). While the High Court rejected the dissenting Justices’ view that a

State’s interest in reliable verdicts cannot trump the right to waive the

assistance of appointed counsel, that hardly suggests that the Court would

completely dispense of the desire to effect justice when a defendant,

representing himself, acts in a manner warranting his removal from the

courtroom. In this vein, Faretta rejected the notion that granting a

constitutional right of self-representation would let disruptive defendants run

roughshod.

We are told that many criminal defendants representing
themselves may use the courtroom for deliberate disruption of
their trials. But the right of self-representation has been
recognized from our beginnings by federal law and by most of

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the States, and no such result has thereby occurred. Moreover,
the trial judge may terminate self-representation by a
defendant who deliberately engages in serious and
obstructionist misconduct. [Allen, supra at 337]. Of course,
a State may—even over objection by the accused—appoint a
‘standby counsel’ to aid the accused if and when the accused
requests help, and to be available to represent the accused in
the event that termination of the defendant's self-representation
is necessary.

Id. at 834 n.46 (emphasis added).

Notably, this passage states that the consequence of behavior

warranting removal under Allen is termination of the right to self-

representation, not forfeiture of the right to any representation, as occurred

herein. Faretta followed the citation to Allen with a suggestion that

appointment of standby counsel is permissible, even over an objection by

the defendant. Thus, the Commonwealth’s suggestion that appointing

standby counsel in this case would necessarily conflict with the right of self-

representation is unavailing.

D

Appellant did not categorically reject standby counsel

Worse, even if we were to accept that the objection to standby counsel

would settle this matter, we must note that the record does not support that

finding. The Commonwealth claims that Appellant “adamantly rejected

representation, [and] spurned stand-by counsel.” Commonwealth’s brief at

3. As quoted supra, Appellant waived his right to counsel, and,

approximately one hour later, changed his mind and asked to have counsel

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reinstated.4 The trial court refused, informing Appellant that he had

completed the colloquy. Appellant responded, “Then appoint standby

counsel to communicate with the [c]ourt.” Tejada, supra at 358 (citing

transcript). Again, the trial court refused and, shortly thereafter, ordered

Appellant removed from the courtroom. The last statement made by

Appellant on the record was, “So you’re waiving my right to counsel or

standby counsel?” Id. Thus, the Commonwealth’s assertion that Appellant

“spurned stand-by counsel” is unsupported. Therefore, we need not decide

whether a trial court may override the wishes of a defendant who adamantly

refuses the appointment of standby counsel, as that did not occur here.

II
____________________________________________

4 The sole issue presented on this appeal is whether the trial court erred in
proceeding with trial after removing Appellant, and not whether the trial
court erred in failing to revisit Appellant’s waiver of his right to
representation. We note that the United States Supreme Court has not
addressed that question:

The other disputed question is whether, after a defendant's valid
waiver of counsel, a trial judge has discretion to deny the
defendant's later request for reappointment of counsel. In
resolving this question in respondent's favor, the Court of
Appeals first concluded (correctly) that “the Supreme Court has
never explicitly addressed a criminal defendant's ability to re-
assert his right to counsel” once he has validly waived it.

Marshall v. Rodgers, 569 U.S. 58, 61–62 (2013) (citation omitted). We
note that Appellant’s vacillation on the issue of appointed counsel occurred
approximately one hour after his waiver and before voir dire, let alone the
trial, had even started.

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Having set forth the pertinent United States Supreme Court

precedents, we now turn to Pennsylvania case law on this subject. As noted,

this is an issue of first impression in this jurisdiction, and the cases

discussed supra do not definitively answer the question of whether the trial

court was required to appoint standby counsel to represent Appellant’s

interests.

As previously noted, multiple decisions by our sister courts have

concluded that standby counsel was required under these circumstances. In

light of the foregoing discussion, we agree and likewise conclude that a

defendant may forfeit his right to be present for his trial and his right of self-

representation through his behavior, but the trial court cannot continue

proceedings (1) without a waiver of the right to representation, or (2)

protecting the right to representation through other means, such as by the

substitution of standby counsel.

This result aligns with Pennsylvania decisions in closely related

contexts. In Commonwealth v. Africa, 353 A.2d 855 (Pa. 1976), our

Supreme Court discussed the fact that the trial court therein bound and

gagged several defendants, all of whom were representing themselves,

during their joint criminal trial. Those proceedings eventually ended in a

mistrial, and the court thereafter imposed imprisonment for contempt of

court. In reviewing the sufficiency of the contempt convictions, our

Supreme Court discussed Allen, supra, and expressed disapproval of the

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gags. Simultaneously, the Court recognized that disruptive defendants can

impede the administration of justice. To balance the rights of criminal

defendants against the need to continue the trial, the decision suggested an

alternative approach:

Potentially disruptive defendants, like all defendants, have the
right to represent themselves if counsel is validly waived.
Whenever a defendant seeks to represent himself, and
particularly when he may be disruptive, standby counsel
should be appointed. The court should explain to the
defendant the standards of conduct he will be expected to
observe. If the defendant misbehaves, he should be warned that
he will be removed from the court, his right to represent
himself will be considered waived, and the trial will
continue in his absence with standby counsel conducting
the defense. If the defendant again misbehaves, these
measures should be taken. The defendant must be made to
realize that his disruptive tactics will result only in his exclusion
from the courtroom. His case will be tried according to law, in an
attempt to do justice, whether he cooperates or not.

Id. at 864–65 (emphases added, footnotes omitted).

These observations were dicta, and Africa stated that standby counsel

should be appointed, not that it must.5 In Commonwealth v. Abu-Jamal,

720 A.2d 79 (Pa. 1998), our Supreme Court applied this language from
____________________________________________

5 The applicable Rule states:

(D) Standby Counsel. When the defendant's waiver of counsel
is accepted, standby counsel may be appointed for the
defendant. Standby counsel shall attend the proceedings and
shall be available to the defendant for consultation and advice.

Pa.R.Crim.P. 121

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Africa to a claim that the trial court denied the right of self-representation

when standby counsel was ordered to take control of trial:

[W]hen Appellant requested to then proceed pro se, the court
initially permitted such status and as a precaution appointed
back-up counsel to assist Appellant. When it became apparent
that Appellant was unable to properly conduct voir dire, the
court first asked Appellant whether his back-up counsel could
take over the questioning or whether he preferred the court to
conduct voir dire. Appellant steadfastly refused to permit his
back-up counsel to take part in any of the proceedings and
argued vehemently that the court should not perform the voir
dire questioning. We find that the court properly took over the
questioning and then properly ordered that back-up counsel take
control.

All defendants, even those who may display the potential to be
disruptive, have the right to self representation. [Africa,
supra]. In such instances, however, it is advisable that stand-
by counsel be appointed. . . . .

....

Appellant next argues that he was improperly removed from the
courtroom for significant portions of his trial. He claims that such
removal violated his right to self-representation and was not
properly tailored to assure continued communication with his
counsel and assistance with his defense. Appellant claims he was
not disruptive and asserts that it was error to remove him from
the courtroom and thereby deny him of his right to represent
himself. Disruptions, particularly those that are purposeful and
persistent, are not to be tolerated as they threaten the court's
ability to conduct a trial properly. Africa, at 619–
620, 353 A.2d at 863. Removing a disruptive defendant from the
proceedings is a permissible means for a court to discharge its
duty to defend the judicial process.
Id. at 620 n. 12, 353 A.2d at 863 n. 12, citing [Allen, supra].
The record is replete with instances of Appellant's unwillingness
to cooperate with the court and/or his counsel. He was
oftentimes argumentative with the court, even after repeatedly
being warned that if this disruptive behavior did not cease, he
would be removed from the courtroom. Under these

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circumstances the removal of Appellant from the proceedings
was proper. See, Africa, supra.

Id. at 108–09 (footnote omitted).

Pursuant to these observations, the trial court had the discretion to

appoint standby counsel and would have been justified in ordering that

counsel to represent Appellant after removal, whereas the question here is

whether the trial court was required to do so.

Applying the foregoing principles, we find that the trial court was not

required to appoint standby counsel upon Appellant’s waiver of his right to

counsel. However, we find that its discretion to do so ended when Appellant

was involuntarily removed from the courtroom.6 See People v. Brante,

232 P.3d 204 (Co.App. 2009) (holding that voluntary absence by pro se

defendant who refused to participate and left courtroom did not result in
____________________________________________

6 We recognize that, in the event this type of situation occurs in the future, a
trial court may have to appoint standby counsel who is unfamiliar with the
case if the trial court is forced to terminate the right of self-representation in
the midst of trial. However, we think that point simply demonstrates the
wisdom of Africa’s suggestion that the better course is to appoint standby
counsel from the start, especially in cases where the probability of disruptive
behavior is high. The trial court noted that Appellant has a history of 179
prison misconducts, and, as our opinion denying the Anders petition noted,
Appellant engaged in a series of absurd tactics in the instant proceeding,
including raising spurious challenges to his competency, sought to charge
the prosecutor with perjury, and maintained that the court lacked
jurisdiction over his person.

Furthermore, a defendant whose behavior warrants the extreme step of
forfeiture of the right to self-representation is hardly in a position to
complain of the irregularities occasioned by those procedures.

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Sixth Amendment violation; trial court not required to force standby counsel

to present a defense in his absence). The trial court was not permitted to

terminate Appellant’s right to counsel due to its own failure to either appoint

standby counsel on its own initiative or grant Appellant’s request for standby

counsel. While Appellant concedes that his behavior warranted removal,

that justifies only the forfeiture of his right to be present, and termination of

his right to represent himself.

“Removing a disruptive defendant from the proceedings is a

permissible means for a court to discharge its duty to defend the judicial

process.” Abu-Jamal, supra at 109 (citing Africa, supra at 620 n.12).

The Commonwealth asks us to find that justice was done because all

Appellant had to do was behave. There is little need to defend the right to

representation for pro se defendants who show the judicial system the

respect it deserves. There is, however, much to be said for defending the

integrity of the judicial system from those persons, like Appellant, who

actively seek to diminish it. “Our system strives to be fair, even to those

who . . . work the hardest to undermine it.” Lacey, supra at 1153. It

would demean the institution of this Court to affirm a verdict rendered

without any semblance of adversarial proceedings, no matter how

distastefully Appellant behaved at this trial and in past proceedings. We

therefore reverse and grant a new trial.

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Judgment of sentence vacated. Case remanded for new trial.

Jurisdiction relinquished.

Judge Solano did not participate in the consideration or decision of this case.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 6/1/2018

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